City of Gosnells v. Duncan

[1994] 12 WAR 437
BC9402011

---

(Judgment by: Anderson J) Court:

Judges: Pidgeon J
Rowland J

Anderson J

Judgment date: 3 November 1994

---

Judgment by:
Anderson J

This is an appeal from a judgment given in the District Court on 22 October 1993 in favour of the respondents in an action in which they claim damages for personal injuries sustained on 29 July 1984 when their motor cycle collided with a pony on Southern River Road at Gosnells. The first respondent was driving the motor cycle and the second respondent was a pillion passenger. The first respondent was very seriously injured. He is paralysed below the fifth thoracic vertebra and he also suffered a brachial plexus injury which has left him without the use of his right arm. The second appellant suffered multiple fractures. The trial was on the issue of liability only and damages have not yet been assessed, but they will be very substantial.

The trial Judge found that the pony, which was killed in the collision, had escaped from the first appellant's land and that the land was inadequately fenced to keep the pony in. He found that the first appellant knew that horses were kept on the land and knew that they did from time to time escape from the land. He found that the first appellant ought to have appreciated that horses straying from the land might get on to Southern River Road which was unlit at night. He held that the first appellant was therefore under a duty to take reasonable measures to ensure that the fencing was adequate.

His Honour found that a "club" known as the Gosnells Polocrosse Club used the land as a polocrosse field and allowed its members to agist their polo ponies there in the off-season, and thereby occupied the land. He found that the second appellants, Mr and Mrs Duncan, were "members of the committee", and that the third appellant, Mr Dixey, was "president" of the club. He found that the club, as occupier, had failed to keep the fencing on the land in good order and failed to take adequate measures to prevent horses kept on the land from straying from it. He held that "the club is liable because of its occupation of and control over the land" and he held the second and third appellants liable as office bearers of the club.

His Honour found that Mr Duncan was the sole owner of the pony and that "he was the person who had the control of the horse at the material time". He held that Mr Duncan was under a duty to ensure that the pony was kept on adequately fenced land and that it did not stray on to Southern River Road. He found that Mr Duncan had failed to discharge that or those duties and held that he was thereby negligent.

There was an allegation of contributory negligence against the first respondent, the driver of the motor cycle and an allegation of voluntary assumption of risk and contributory negligence against the second respondent, the pillion passenger. His Honour found that there had been no contributory negligence and no voluntary assumption of risk.

In this State, liability for damage caused by animals straying onto highways is the subject of legislation.

By s3 of the Highways (Liability for Straying Animals) Act 1983 (WA) it is relevantly provided that:

"3(1)

... so much of the common law relating to liability in tort for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by animals straying onto a highway does not form part, and shall be deemed never to have formed part, of the law of Western Australia

(2)

...

(3)

a court shall determine the liability in tort of a person for damage caused by animals straying onto a highway solely according to the law of Western Australia relating to liability in tort for -

(a)

negligence ...

(4)

in determining according to the law of Western Australia relating to liability in tort for negligence whether or not a person is liable for damage caused by animals straying onto a particular highway, a court may consider, among other matters -

(a)

the general nature of the locality...

(b)

the nature and amount of traffic

(c)

the extent to which users of that highway would expect to encounter animals...

(d)

the common practice in the locality in relation to -

(i)

fencing and the taking of other measures to prevent animals from straying... and

(e)

the cost of fencing...."

His Honour found that the nature of the locality was semi-rural, but that land on which stock was kept was fenced. It was not open grazing country in that sense. Users of the road would not expect stock on the road at night.

The judgment against the first appellant municipality was attacked on two principal grounds. In the first place it was said that there was no cogent evidence that the pony had strayed from the first appellant's land. Secondly it was contended that even although the first appellant was the owner of the land, it was not in the relevant sense in occupation or control of the land but had leased the land to the club and was therefore under no duty to prevent stock straying from the land.

There was no direct evidence that the pony had strayed from the polocrosse grounds, but that was the inference made by his Honour and in my opinion the inference was correctly made. The collision occurred immediately outside the grounds. Although it was the off-season, members of the club, including the second appellants, agisted their polo ponies on the grounds during the off-season. The subject pony was a polo pony. It belonged to the second appellant, Mr Duncan, who was an active member of the club. He had a key to the gate into the grounds. The boundary fencing around the grounds was inadequate to prevent horses from getting out. The only other place from which the pony might have escaped was the second appellant's property which was in Mattison Street, about a kilometre distant from the grounds. If at that place, the pony would have been secured in a 5 acre paddock. The paddock fencing was in good condition and sufficient to keep horses in, and there was no gate from the paddock to Mattison Street.

The second appellants gave evidence that the pony had been in the paddock at their property, not at the polocrosse grounds. But the second appellants were not credit worthy and this part of their evidence was not believed and did not therefore stand in the way of the inference made by his Honour.

As has been said, the first appellant denied that it owed any duty at all to road users in virtue of its ownership of the subject land.

On 1 December 1975 two deeds of lease had been executed whereby the first appellant purported to grant a five year lease of part of the land with successive 3 year options of renewal for a total of 21 years, and a seven year lease of the remaining part, with successive 3 year options of renewal for a total of 21 years. It is not clear why separate leases of different parts for different terms were executed. The commencement of each term was 1 January 1975. The leases in each case were to Mr Dixey and Mrs Duncan. In the leases they are described respectively as "the President of the Gosnells Polocrosse Club" and "the Secretary and Treasurer of Gosnells Polocrosse Club" and were jointly defined as "the lessee". Hence neither lease was a lease to the club. The lessees' obligations were expressly undertaken by Mr Dixey and Mrs Duncan and by no-one else. By CL4(g) the options of renewal were to be exercised in each case prior to the expiration of the term, by the giving of 3 months notice in writing.

It was a successful club apparently and in November 1978 more land was required. There was an adjoining parcel of 4.5 acres and an informal arrangement was entered into for the club to obtain the use of that parcel to increase the number of playing fields to six.

In January 1980, a fortnight or so after the expiration of the five year lease, Mrs Duncan wrote to the first appellant purporting to "apply for reapproval of the five year lease". The first appellant indicated by letter its agreement to renew that lease for a further period of three years. On 1 December 1981 Mrs Duncan wrote regarding the other lease stating that the Club "wishes to apply to renew our lease ... which expires on 31/12/81 (previously seven year lease)". The first appellant replied on 16 February 1982 stating that "Council has agreed to renew the lease ... for a period three years..." By the end of December 1982 the first renewal of the first lease had expired. Apparently this was not immediately realised but on 18 March 1983 Mrs Duncan wrote to the first appellant stating "the above Club wishes to apply to renew our lease on the portion of Lot 1765 Plan 3315. This portion expired on 31/12/1982". On 17 May 1983 the first appellant replied that to bring "both leases into conformity, Council has resolved to renew the lease of the northern portion of Lot 1765 Southern River Road, until 31 December 1984. The annual renewal of this portion will be $150 until 31 December 1984. I am sure you will agree this will allow for prompter action on lease renewals". Hence this "renewal" was not for three years but for two years only.

Mr Dixey was not a signatory to any of the "renewal" correspondence. Mrs Duncan did not purport to renew the leases on behalf of herself and Mr Dixey, or in her own right. She plainly corresponded on behalf of "the Club" and the first appellant plainly dealt with her as representing "the Club". The correspondence shows an intention to create legal relations between the club itself and the first appellant, not between Mr Dixey and Mrs Duncan and the first appellant. The rights of occupancy were intended to be granted to or conferred upon the club as such and the obligations which were incidents of that occupancy, including the obligation to pay rent, were expressed to be obligations of the club as such. The correspondence was not therefore effective as a lease or an agreement for a lease to Mr Dixey and Mrs Duncan, or to Mrs Duncan alone.

As to whether there was a lease or agreement for lease to the "club", in my opinion there was not. In the first place, there was, in truth, no such legal entity. The "club" had no constitution and no rules. It did not therefore have the essential characteristic of an unincorporated association, ie, a composite body of persons in "a legal relationship ... giving rise to joint rights or obligations or mutual rights and duties"; Re Commonwealth Homes and Investment Co Ltd [1943] SASR 211 per Mayo J at 228. See also Bohemians Club v Federal Commissioner of Taxation (1918) 24 CLR 334 per Griffiths CJ at 337. There was a mere aggregation of persons not in any legal relationship, not bound together by any identifiable consensual arrangement and not defined by any constitution. There was therefore no separate or identifiable entity for whom Mrs Duncan might have had some authority to complete the transaction. As she plainly did not intend nor purport to complete the transaction for herself, and as it is clear that the first appellant did not deal with her as if that was the intention, it seems to me that the purported renewals were nugatory. Secondly, at the very most, the reference to the Gosnells Polocrosse Club must be taken to be a reference to the several persons who from time to time claimed to be the members of the club. It is settled law that there cannot be a demise to a fluctuating body of persons: Jarrott v Ackerley (1915) 113 LT 371 ; Freeman v McManus [1958] VR 15 ; Carlton Cricket and Football Social Club v Joseph [1970] VR 487 ; Banfield v Wells-Eicke [1970] VR 481 . And see Fletcher, Non-Profit Associations, pp 92-101.

Therefore, after the expiration of the original terms, there were no further leases to any body of persons or to any individual. The first appellant was not therefore in a position to say as at the date of the accident that it had ceded any of the relevant incidents of ownership. It was the owner and, de jure , it was in control of the land.

The liability of the first appellant is therefore to be approached upon that basis. That it permitted the land to be used by others is not to the point. There was ample evidence from which his Honour could find, as he did, that the first appellant knew through its responsible officers, such as its ranger, that horses were kept on the land in the off-season. The first appellant must be taken to have known that if the land was not adequately fenced the horses would stray and might get on to Southern River Road. The first appellant must be taken to have known that that road was unlit and if horses were upon it at night, road users might collide with them. In my opinion that is all that is necessary to give rise to a duty of care to road users. There was sufficient "causal proximity" between the act of allowing large animals to be upon land inadequately fenced to keep them in and the injury sustained by the respondents: The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 . The defences that might have been available had there been an effective demise of the land are not available because there was no such demise.

As to the condition of the fencing around the land, there was ample evidence on which his Honour could find that it was inadequate to keep horses from straying. Mrs Hegarty, who had lived nearby the subject land until late 1984, testified that on a number of occasions, including in 1984, horses grazing on the land would stray from it and come into her property. She would catch and stable the horses and telephone the number of the Gosnells Polocrosse Club to have the horses collected. She also complained to officers of the first appellant and the complaints were received without demur. She described the fences around the polocrosse grounds as "very loose". A Ms Day gave evidence that she visited the subject land up until late 1983 to tend to a friend's horses agisted on the land. She described the fences as in poor condition. She said that during the rainy season the star pickets would become very loose and "bend quite a lot" and the horses were able to "step over them quite easily". She also said that her friend's horses "used to get out of the paddocks quite regularly" and that she and her friend would attempt to "fix up the fences that they had pushed down to get through". Whilst Ms Day could not say anything about the state of the fencing after late 1983 her evidence was relevant to show the condition of fencing that appeared to be acceptable to those agisting their horses on the grounds in the off-season and lends credibility to the evidence of those witnesses who testified to the poor state of the fencing at the material time. A Mr Scott gave evidence that in 1984 he purchased a property in Southern River Road near the subject land. He testified that between May and July 1984 he had occasion to observe the state of the boundary fencing of the subject land and observed that the north-east boundary fence was in disrepair. He described it in the following terms (AB 287): "The fence posts, instead of being perpendicular, pushed this way. They had obviously had pressure of animals on them. The wires that were comprising the fence-line were slack."

He said that he had occasion to go onto the grounds from time to time and had no difficulty stretching the wires to pass through the fence. Mrs Roberts, the mother of the respondents, gave evidence that some two weeks after the accident she observed sections of the fencing around the polocrosse grounds to be made up of rusty wires attached to star pickets, a lot of which were loose and at an angle of 45 degrees.

It is true that his Honour described some of this evidence as exaggerated and much of it was contradicted by other evidence. But his Honour saw and heard the witnesses and it is impossible to say that the conclusion that at the material time the fencing on the subject land was insufficiently maintained to confine horses was erroneous.

In my opinion the appeal by the first appellant against his Honour's findings of negligence as against the first appellant must be dismissed.

The finding of negligence as against Mr Duncan is based on the finding, not now challenged, that he was the owner of the horse, as well as on the finding that he was a "member of the committee". For reasons that I will endeavour to state below in discussing the liability of Mr Dixey and Mrs Duncan I do not think any liability arises out of the latter finding. However the finding of negligence against Mr Duncan based on his ownership of the pony is justified by the evidence. His ownership of it gave rise to a duty to take reasonable steps to ensure that it did not stray onto roadways in circumstances in which it might become a hazard to road users. Thomson v Nix (1976) WAR 141 per Jackson CJ at 147; Highways (Liability for Straying Animals) Act 1983 s3. That duty was not discharged by placing the horse upon land which was inadequately fenced to confine it.

Both the second-named second appellant Mrs Duncan and the third appellant, Mr Dixey were sued upon the basis that they were office-holders of the club. Mr Dixey admitted by his defence that at the material time he was President of the club and Mrs Duncan did not at trial contest that she was Secretary. His Honour expressed himself as having "no difficulty in finding " that they were "members of the committee of the Club". However, as has been observed, the club had no written rules and no written constitution. There is no evidence that there were any rules at all, nor any constitution. What his Honour meant, therefore, by "committee" is not easy to see.

I have already expressed my opinion that there was not in fact a club in the relevant sense, that is, in any sense known to the law. There was merely a group of people some of whom from time to time behaved like the executive body of a club, but they in reality had no power and no authority derived from any constitution or rules. They had no capacity to deal with others except in their own right and for themselves as individuals. In my opinion liability cannot be fixed upon either Mrs Duncan or Mr Dixey (or on Mr Duncan for that matter) by recourse to the doctrines relating to unincorporated associations; and there is no other basis on which either of them can be held liable for the respondents' injuries. There is simply no nexus between the injuries sustained by the respondents and any act or omission on their part. The judgment against Mrs Duncan and Mr Dixey should be set aside.

This leaves the question of contributory negligence. His Honour concluded the evidence did not establish any contributory negligence. There is no good reason to interfere with that conclusion. There was no evidence of excessive speed. The evidence of the driver, the respondent Kevin Roberts, was that the motorcycle was travelling at about 60 kilometres per hour at the material time, the speed zone in that section being 110 kilometres per hour. His lights were on high beam. Apart from the fact of the collision there is no evidence of failure to keep a proper lookout. The collision itself did not establish a failure to keep a proper lookout in the circumstances. The road was unlit. There is no evidence where the pony was in relation to the road until the respondent saw it too late to avoid impact. The headlight beam cast 40 to 50 metres ahead and was 20 metres wide at its widest point (here speaking of useful light) ie 10 metres to each side at a distance of 50 metres at most. The fence line was 20 metres from the centre of the road. The pony could have been and his Honour found that it probably was out of the field of vision until moments before impact, leaving the respondent with no real opportunity to avoid the collision. The conclusion receives some support from the evidence of another motor cyclist, one Jackson, who had overtaken the respondents on Southern River Road shortly before. This witness did not see the pony.

There was evidence accepted by his Honour that the respondent Kevin Roberts was under the influence of alcohol to an extent that "impaired his ability to drive and control the motor cycle...", but there was no proven connection between that fact and the accident. Drunkeness is relevant in road accident cases insofar as it may be an explanation for a manner of driving, but it was not shown that the respondent's drunkeness actually did affect the respondent's manner of driving in a relevant way, and hence there is no basis to conclude that the court of trial erred in refusing to find contributory negligence on the strength of excessive consumption of alcohol. For that same reason the allegation of contributory negligence against the pillion passenger, Sean Roberts, and the defence of volenti non fit injuria must fail. These defences depended on proof inter alia that the accident was due to the intoxication of the driver, Kevin Roberts. In the absence of proof that the accident was due to the intoxication of Kevin Roberts there is no connection between the "risk"said to have been voluntarily assumed, and the injury.

For these reasons I would allow the appeal by Mrs Duncan and the third appellant. Otherwise the appeals should be dismissed. I agree with the orders proposed by Pidgeon J.